The Brechner Report
Volume 19, Number 11
November 1995

A monthly report of Florida mass media law published by The Brechner Center for Freedom
of Information in College of Journalism and
Communications at the University of Florida. It is published 12 times a year under the
auspices of the University of Florida Foundation and is a joint effort of The Brechner
Center for Freedom of Information, the University of Florida College of Journalism &
Communications, the Florida Press Association, the Florida Association of Broadcasters,
the Florida Society of Newspaper Editors and the Joseph L. Brechner Endowment. The
Brechner Report would like to thank Mary A. Giery Smith for her contributions.

Susan D. Ross, Editor

Kelly Barber, Production Coordinator

Michelle Quillen, Production Asst.

Sandra F. Chance, J.D., Asst. Director

Bill F. Chamberlin, Ph.D., Director

Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611

WEST PALM BEACH -- The 4th District Court of Appeal recently ruled two separate
contracts invalid because of Sunshine Law violations by the two agencies involved in
drafting the contracts.

The appeals court upheld a lower court ruling that voided a contract awarded by the
Port Everglades Authority in Florida and overturned a judgement requiring Broward County
to fulfill a land-swap contract between the county and Nathan and Maria Conner.

In the Port Everglades case, the port authority's selection and negotiation committee
had asked bidders on a port authority project to leave the meeting room voluntarily while
their competitors presented proposals. In overturning the contract, the appeals court
rejected the port authority's claim that the "innocent, technical" violation of
the Sunshine Law did not prejudice the contract award. The court held that once a
violation occurs, "prejudice is presumed." (Sept. 1995)

Similarly, the appeals court ruled in July that a contract drawn up between attorneys
for Broward County and the Conners was invalid because it had not been acted upon by an
official county body at a public meeting.(7/19/95)

FERNANDINA BEACH -- The Nassau County Commission recently relinquished control of a
county economic development committee so the committee could meet outside the Sunshine
Law.

By unanimous vote, the commission removed its direction and control of the committee
but agreed to continue to provide $50,000 a year for the next two years to the economic
development committee. The committee also raises private funds to support its operation.

The county commission move is designed to establish the economic development board as
an independent, private business exempt from the Sunshine Law, which requires governmental
bodies to conduct business in public.

The commission said the obligation to operate in public hampered business negotiations
of the economic development committee.

County Attorney Mike Mullin cited an opinion of the state Attorney General's Office
which said that a board could retain county funding and membership of one county
commissioner yet be exempt from the Sunshine Law.(9.27/95)

TAVARES -- Former Mascotte Mayor Odis "Josh" Thomas was recently acquitted of
charges of bribery, theft and assault, but charges that he violated the Sunshine Law are
pending.

5th Judicial Circuit Judge Don F. Briggs earlier agreed to separate the misdemeanor
Sunshine Law charges from charges that the 60-year-old former mayor had stolen topsoil,
received illegal compensation from an operator at a carnival licensed by the town and had
assaulted a local police officer.

Although the jury acquitted Thomas of the bribery, theft and assault charges, a date
remains to be set for the separate trial on the Sunshine Law allegations.

Defense attorneys said they would ask the court to dismiss all of the pending Sunshine
charges. Defense attorneys argue that the Sunshine allegations stem only from casual
encounters between Thomas and city council members. (9/7/95-9/26/95)

WEST PALM BEACH-- The 4th District Court of Appeal recently overturned a lower court
ruling that would have made public the grand jury transcripts related to a first-degree
murder trial.

The appeals court held that the circuit court had mistakenly applied the wrong section
of Florida's Public Records Law. 15th Judicial Circuit Judge James Carlisle earlier had
ruled that the secrecy of grand jury records violated a state constitutional mandate to
disclose public records because lawmakers had failed to explain the need for their
secrecy.

The decision involved grand jury testimony in the first-degree murder trial of Ronald
Knight. Knight was charged in the May 8 death of Brendan Meehan. The prosecution is
seeking the death penalty in the case.

Assistant State Attorney General Anne Carrion appealed the lower court ruling on the
grounds that release of grand jury records potentially would expose witnesses to outside
influence and hamper operation of the judicial system. (9/1/95)

MIAMI -- A federal judge for the Southern District of Florida told the Executive Office
for Immigration Review to create a program, if needed, to comply with a request for
computerized public records, according to a report in Quill Magazine.

The Justice Department's immigration review office initially denied a request for the
release of the records of decisions on Haitian nationals by Immigration Court Judge Philip
Montante. The agency said its computer system could not search for decisions by individual
judges, and it had no obligation to create a search program.

A U.S. magistrate disagreed and ordered the agency to comply with the request either by
conducting a manual search of the records or by creating a new computer search program.
The judge said the request did not require the creation of any new records. (Sept. 1995)

ALACHUA COUNTY -- Alachua Assistant State Attorney William Cervone determined that
Brevard County sheriff's staff legally withheld a document related to an active police
investigation but illegally denied the existence of a memo linking a sheriff's deputy and
a known prostitute.

State Attorney Norm Wolfinger appointed Cervone to conduct an independent investigation
into the actions of sheriff's staff after Florida Today claimed the staff violated the
Public Records Law.

Cervone confirmed that Sheriff's Cmdr. Dan Wilmer in May told a Florida Today reporter
that a memo related to the sheriff's deputy and the prostitute did not exist. Cervone's
investigation also determined that the memo did exist, but the reporter's request for
access to the memo occurred while the investigation was pending. The record was,
therefore, legally exempt from disclosure, the investigation determined. Cervone said the
department should have given a basis for nondisclosure rather than deny the memo's
existence. (9/27/95)

EATONVILLE -- 9th Judicial Circuit Court Judge George Sprinkel recently absolved the
town of Eatonville from its obligation to pay $65,000 in lawyer's fees for a public
records lawsuit because the town is small and has limited financial resources.

The decision came in response to a request for payment of attorney's fees from West
Palm Beach paralegal Michael Barfield. Barfield won a lawsuit filed in July 1994 to obtain
Eatonville town records related to a proposal to open a topless club in town. Barfield's
attorney says the town has not yet released all the records related to the business
proposal. Barfield says he plans to appeal the circuit court ruling.

The Eatonville town attorney had argued that the town was not obligated to pay the fees
because it had not intentionally violated the Public Records Law. The town argued that the
violation occurred in part because of intentional delays by the town clerk, who
subsequently was fired. (9/28/95)

TALLAHASSEE -- At least two of 16 television stations being sued for allegedly running
misleading advertisements in support of the state ban on commercial net fishing adopted by
voters last year asked that the suit be dismissed.

Channels 2 and 9 of Orlando recently asked 9th Judicial Circuit Judge George A.
Sprinkel IV to dismiss the suits on a number of grounds, including their status as pure
political speech protected by the First Amendment. The motion to dismiss also argued that
the advertisements are opinion and not false or defamatory statements of fact, and they do
not libel the fishermen individually or as a class.

The ads ran before election day 1994, when voters overwhelmingly supported a
constitutional amendment banning commercial net fishing in most Florida waters.

The Organized Fishermen of Florida filed suit in August against stations in Orlando,
Tampa, Jacksonville, Miami and Fort Myers for commercials they claim inaccurately portray
a fish and sea turtle being harmed aboard what appears to be a commercial Florida fishing
boat. The suit claims the videotapes actually were taken aboard a University of Georgia
research vessel. (8/17/95-8/18/95)

DESTIN -- A week after instituting a policy limiting media access to city employees,
City Manager Philip Cook repealed the gag.

The policy had prohibited most city employees from talking with reporters and had
required them to report any contact with the media to Cook. Heads of three city
departments had been permitted to report the content of their meetings to Cook.

Cook implemented the policy Aug. 25 in response to what he called
"inflammatory" and "inaccurate" reporting, according to the Northwest
Florida Daily News. Cook repealed the policy because he said it inaccurately sent the
message that the city was trying to conceal information from the public.(9/1/95-9/6/95)

The High Court, without comment, rejected a free-speech challenge to the
uniformity-of-appearance rules that require newsracks to be brown and tan and contain
lettering no larger than 1.75 inches high.

The case originated in 1991, when the free, Spanish-language newspaper Exito! refused
to conform to the city's regulations. Exito! publisher, Gold Coast Publications, said the
newspaper's distinctive purple racks and lime green, bright orange or hot pink logo
assured the newspaper's visibility. The city confiscated several of the racks, and Gold
Coast sued in federal court arguing that the rules violated the newspaper's First
Amendment rights. (10/17/95)

JACKSONVILLE -- The City Council recently adopted an ordinance that exempts newspaper
peddlers from city-mandated fees imposed on sidewalk peddlers and vendors.

The change exempts from the fee all materials protected by the First Amendment, which
city councilors say includes newspapers, magazines, periodicals and pamphlets. The city's
regulations on vending were changed about a year ago and impose fees on each peddler
ranging from $10 per day to $250 for a year-long permit.

The Florida Times-Union drafted and championed adoption of the amendment to exempt
publications from the fee on the basis that the fee constituted an illegal prior restraint
on the free operation of the press. The city denied that the fee was unconstitutional when
imposed on newspapers but removed it in response to pressure from newspaper publishers. (8/25/95)

Judge lifts media gag

STUART -- 19th Judicial Circuit Judge Dwight Geiger recently ruled that he had
improperly ordered the press not to publish the names, addresses or photographs of jurors
in a first-degree murder trial. The judge issued a new order prohibiting jurors in the
courtroom.

Judge Geiger had entered the earlier ruling in the trial of Victor Brancaccio after two
jurors expressed concern that they might be threatened if they were identified by the
media. The Palm Beach Post, The Stuart News and the Ft. Pierce Tribune challenged the
order as unconstitutional on the grounds that the information was readily available to
anyone in the courtroom.

Judge Geiger lifted the gag on media and said that "the evidence indicates that
there is no serious threat to juror safety at this time."(9/29/95-9/30/95)

WEST PALM BEACH -- 15th Judicial Circuit Judge James Carlisle ruled that a defendant's
right to confront his accuser outweighed the confidentiality privilege of a juvenile
patient and her psychotherapist.

The ruling, in the trial of Dumas Parson for his wife's murder, releases to attorneys,
but not the media, the psychotherapy records of a 4-year-old girl who witnessed the July
9, 1994, shooting. (9/1/95)

BOCA RATON -- The 4th District Court of Appeal recently refused to reconsider its
August ruling that prohibits a former National Examiner reporter from testifying in her
lawsuit against the tabloid.

In the suit, reporter Lori Ronan alleges that in 1992 attorneys for the National
Examiner announced a company policy requiring reporters to tape two sources for every
story, even without source consent. State law prohibits taping without consent. Ronan
charges that she was fired when she refused to follow the policy.

Attorneys for Globe Communications, owner of the Examiner, argued that the alleged
policy conversations fall under attorney-client privilege and therefore may not be entered
into the record of the trial. Judge Richard Wennet of the 15th Judicial Circuit initially
granted Ronan's motion that the testimony be allowed.

The 4th DCA overturned that decision, and Wennet interpreted the appeals court decision
to prohibit Ronan from testifying about any aspects of the conversations with the
attorneys. The 4th DCA recently refused to clarify its earlier ruling in the case. (9/28/95)

by Sandy L. Bohrer

It has become fashionable to blame the press for society's ills. The press is too
negative (Certainly you remember the vice president/felon who referred to the
"nattering nabobs of negativism!) and too sensationalistic. I keep hearing and
reading that the Simpson case crystallized "perceptions" that the press, by
televising trials, encourages disrespect for the system and distorts the process as
judges, lawyers, witnesses and even jurors play to the camera. Studies show this is simply
false.

It is no more true that the camera in the Simpson courtroom was responsible for how the
trial was conducted, reported to the public or presented in the media than it is true to
say the Simpson trial is the trial of the century. The Simpson case was simply the latest
of at least twelve cases called "the trial of the century." Among other
notorious trials of the century devoid of live television coverage were the Charles Manson
trial, which took nine months in a California courtroom accompanied by sensationalistic
reporting; the Scopes "Monkey Trial" case; and the Chicago Seven trial during
which the antics of the judge, defendants and their attorneys could not be blamed on
television.

Cameras in the courtroom are part of the solution, not the problem. The Simpson trial
showed at least one example of what happens when a judge fails to control the courtroom
and the lawyers. The camera provided examples of lawyers lacking ethics and manners in the
courtroom during the day and criticizing the judge or the other side on CNN during the
evening. The camera demonstrated how the process just generally can get out of hand.

To the extent this was, as some say, an aberration, there are still lessons to be
learned. To the extent it was, as others say, representative of fundamental problems with
our justice system -- or at least the California justice system -- there are other lessons
to be learned. If it teaches us we need to do more to protect everyone's rights and police
our police, or we need to educate our children about hatred, justice ad fairness before
they become police, lawyers, jurors and judges, this, too, is a benefit of seeing the
system operate.

I have heard people say the closing arguments at the Simpson trial will be used for
years in law schools. Perhaps, but more importantly we can use the Simpson trial
experience more generally to educate ourselves about the broader issues it raised, from
the legal issues for law students to the cultural and societal issues for all of us.

And that singe camera made it possible. There simply is no way newspaper articles could
have conveyed what that one camera did.

The real problem with the Simpson trial was not that camera, providing unedited and
uncensored total coverage. The problem was what that camera revealed about America -- the
obsession with celebrity, lawyers, sensationalism, blood and gore, and the deep divisions
between white and black. The camera simply delivered the message.

It that message shows the government, legislators, judges, lawyers or the judicial
system in a bad light, isn't that why we let the sunshine in? The answer to flaws in the
system is not to hide the flaws but to reveal and remedy them. The simple empirical truth,
proved repeatedly during the Simpson trial and during hundreds of trials telecast by Court
TV is: Cameras do not harm the process. Cameras provide significant educational, cultural
and political benefits.

With camera coverage, the public is able to judge for itself, by observing the lawyers,
the witnesses and the evidence, whether justice is being done. And that's the way it
should be.

***Sandy L. Bohrer is a partner in the Miami office of Holland & Knight.